Obligation

OBLIGATION. - O. in its very Latin etymology means, in the active sense, the act of binding or obligating, in the passive sense the feeling of being bound or obligated, or the bond or tie itself. Its first figurative use occurred in Roman law, in which it meant a juridical relationship by virtue of which a correlation of rights and duties is established between two or more subjects for a determinate performance (cf. Justinian, Institutes, 3, 13). In the active sense it came to be a synonym of creditum, and in the passive sense a synonym of officium (duty). It is in this latter sense that the term o. entered the vocabulary of philosophy, indicating the bond or moral necessity deriving from the ethical law.

1. PHILOSOPHY

In ethics (v.) it is the moral bond that the law (v.) produces in a free and responsible subject, determining in him the sentiment and the claim of duty. The concept of o., although already present in Greek thought, found its full philosophical elaboration only after Christianity, which studied it in the light of the doctrine of the human person and of the transcendence and personality of God. The principal questions concerning o. regard the subject capable of duty (the root of o.), the binding value of the law (the cause and foundation of o.), and finally the very essence of the sentiment of duty (the effect of o.).

1. The subject of o

The subject of o. can only be the finite spiritual nature, which, through the perfect immanence of its operative life, is capable of leading itself to the end that transcends it, through the progressive enrichment of its inner potentiality. Non-spiritual beings are incapable of o., because they essentially involve instrumentality and physical determinism (v.) (Sum. Theol., 1ᵃ-2ᵃ, q. 1, a. 2). God, by the fullness of his being, cannot be a subject of o. (cf. E. Kant, Critique of Practical Reason, Ital. trans. by F. Capra, 5th ed., Bari 1942, p. 95). The human person, as a finite spiritual nature, is radically capable of o.; nevertheless, not all of his activity can be bound by o., but only that which depends on free volitional determination. Therefore, not only are the activities subject to the physical mechanism of material nature to be excluded in man, but also the inclinations essential to his own perfection and happiness (appetitus beatitudinis). Such inclinations in a certain sense condition o., and are not conditioned by it: they are in fact the very source of all volitional energy (ibid., q. 10, aa. 1-2). O. finds in them its content (ibid., q. 94, a. 2), and gives them that value by which the finalistic tendency becomes for the human spirit an "ought to be," and the love of the end is transformed, for the will, into the duty of knowing and realizing the means that lead to the end. To explain o. by immanent inclinations means to destroy its concept: it would in fact be nothing but blind sentiment or impulsive instinct of power or creative vital impetus; physical determinism therefore, never a source of duty, which necessarily leads one to go outside the subject, in order to establish an objectively binding principle.

Hence all doctrines that deny human spirituality and freedom abolish the very possibility of o.: materialism (v.), evolutionism, sensualism (v.), positivism (v.) and sociologism. They attempt to explain the existence of duty by recourse to physical, biological, psychic or social laws. H. Spencer, for example (The data of ethics, London 1879, § 46), speaks of association of ideas (v.), of the struggle for life, of heredity. Contemporary sociologists derive duty from "social pressure," by which individual life would be entirely conditioned by the life of the "group," the true subject of human activity (cf. L. Lévy-Bruhl, La morale et les sciences des moeurs, Paris 1903). Although they attempt to safeguard the subjective value of the individual, the theories that condition duty on sentiments or inner impulses do not preserve the authentic concept of o. Hobbes (v.) sees in the egoistic sentiment of fear the motive of contractual subjection to the absolute will of the sovereign. For A. Smith (Theory of moral sentiments, III, Edinburgh 1759, chaps. 4-6) reflection determines the passage from spontaneous and affective sympathy to the consideration of others' approval and thus to the formulation of rules exercising inwardly that pressure which is called duty. M. Guyau (Esquisse d'une morale sans obligation ni sanction, Paris 1885) affirms that duty is nothing but an expression of vital power, which has rendered itself impersonal through the idea-forces, which give such intoxication for struggle and risk as to make even the sacrifice of life appear as "an expression of life" (p. 250). A. Schopenhauer (v.) in Über die Freiheit des menschlichen Willens defends volitional determinism on the part of character; and in Über das Fundament der Moral affirms that from the sentiment of pity (Mitleid) derive justice and duty, which will later be surpassed by charity. F. W. Nietzsche (v.) exalts the vital power of the individual will: the morality of the common herd is founded on duty, reducible to social pressure, while the morality of the superman (v.) finds its limits only in the fullness of the affirmation of its own power, creative of values that are also social. H. Bergson (Les deux sources de la morale et de la religion, Paris 1932) distinguishes two types of o.: one presents itself in the stylized and closed form of the morality of the multitude, as an effect of social pressure; the other is the fruit of an intuition by which the subject aspires to self-surpassing according to the vital impetus, which it feels immanent in itself and in all reality. Nevertheless the root is always one: "toute morale, pression ou aspiration, est d'essence biologique" (p. 103).

2. Cause and foundation of o

The cause of o. must be objective, categorical and immanent to the person himself. Objective, inasmuch as no subject can bind itself and nothing empirical can express absolute and universal principles. Categorical, since any condition does not absolutely commit the subject and would be reducible to a subjective principle. Immanent, because any extrinsic cause would be either physical determination or coercion, both destroying the essential autonomy (v.) of the spirit and therefore the very root of duty. In o. the human person (v.) expresses within itself a duality: it is at once binding and bound, an absolute and universal objective principle and a particular and contingent operative subject. It is binding, inasmuch as with its reason it expresses the law (Sum. Theol., q. 90, a. 1). It is bound, inasmuch as it feels the claim of duty. The question then arises of the "foundation" of o.: namely, how human reason can dictate an absolute form that categorically binds the will. Already in Greek philosophy human reason was considered as a finite participation in the universal Reason, and the moral law as an expression of the

"eternal law" (v. LEGGE). Christian philosophy developed this concept thoroughly, considering personal reason and the natural moral law as a participation in the Reason and the eternal law of God (cf. St. Augustine, De vera religione, chs. 30-31, nos. 54-58; Sum. Theol., 1ᵃ-2ᵃᵉ, qq. 90-97). Not a few rationalist currents exclude any reference to God, appealing to an impersonal universal Reason, that is, to the complex of principles and norms which, by their immediate self-evidence, impose themselves on every intellect (cf. F. Buisson, Foi laïque, Paris 1912). But impersonal reason is a pure conceptual abstraction; an objective truth that implies a relation to the absolute intellect; a theoretical ideal intrinsically incapable by itself of binding the free will: the impersonal cannot in fact impose itself on the person, who as such expresses the highest dignity in the order of beings (cf. R. Le Senne, Traité de morale générale, 2nd ed., Paris 1947, pp. 571-72).

For Kant practical reason is in itself legislative and law, pure universal and categorical normativity without content, a formal obligatory principle. Its validity imposes itself practically by itself; nor is it possible to establish its theoretical and empirical grounds without destroying it (Critica della ragion pratica, ed. cit., pp. 37-38). It reveals to the person, subject to the mechanism of empirical feelings, his personality, by which he feels himself an end and not an instrument, autonomous and perfectly free (ibid., p. 104). The concept of God does not ground obligation; rather it is obligation that grounds the postulate of God's existence, because through the pure intention of duty the will becomes holy and acquires confidence toward the Supreme Being: "only from a will morally perfect (holy and good), and at the same time also omnipotent, can we hope for the highest good, which the moral law makes it a duty for us to posit as the object of our efforts, and therefore we can hope to attain it through agreement with this will" (ibid., p. 155). The Kantian position is not only untenable because it posits a pure obligation without content, but above all because it leaves that same obligation without any foundation; it leads to pantheistic immanentism (v.) or to a pure phenomenological analysis of subjective consciousness. Pantheistic immanentism finds its perfect elaboration in the panlogism (v.) of Hegel (v.). It is the objective Spirit that imposes itself on the subjective spirit: it is the power of the ethical State that binds individuals and, freeing them from their empirical subjectivity, leads them to the immediacy of the Absolute Spirit (cf. Grundlinien der Philosophie des Rechts, Berlin 1821, part 3, nos. 148-49). The modern theory of values (v.) takes up Kant's phenomenological analysis. Duty is the very law of freedom, which is explained and affirmed only in the act of positing ends or values: the normativity of consciousness is nothing but an essential moment in the development of the axiological cycle (cf. R. Polin, La création des valeurs, Paris 1944). For W. Stern (Person und Sache, III, Leipzig 1924) value is the end of all life, and therefore Introspektion, by which the I (v.) affirms its value by making all other values its own (p. 353), represents the content of the categorical imperative (p. 89). The followers of existential spiritualism seek to give the value-I, which imposes itself on the empirical I, the transcendent foundation of God (cf. R. Le Senne, Le devoir, Paris 1937; id., Traité de morale générale, 2nd ed., ibid. 1947).

3. Effect of obligation

The moral law produces in the will an interior demand or duty, which binds it, though without necessitating it, in so categorical a way that disobedience determines in the subject the sense of guilt, remorse and fear of a sanction adequate to the absoluteness of the order violated (for the development of Greek thought on this subject, cf. C. Del Grande, Hybris, Naples 1947). According to empiricism, the feeling of duty is nothing but a derivative of egoism or of an innate altruistic sense: one remains on the plane of physical necessity, even if one admits the intermediary of a hypothetical imperative. Rationalism, on the other hand, has recourse to logical necessity, whereby moral guilt comes to be identified with error, and the freedom and responsibility of the human person are thereby sacrificed (cf. E. Zeller, Vorträge und Abhandlungen, III, Leipzig 1884, p. 231). Kant identifies the feeling of duty with respect toward oneself, which the moral law produces by its absoluteness upon the will. It is, first, a negative feeling of humiliation; it then becomes a positive feeling of esteem and admiration, that is, a recognition of the absolute dignity of one's own pure personality, perfectly free from the empirical. Respect produces interest in the law. Nevertheless, the nature of this causality cannot be rationally explained; it is admitted practically in the same way that the moral law was admitted (Critica d. r. pratica, ed. cit., pp. 95-96). The concept of commitment or moral interest has been greatly developed by contemporary philosophy, as an essential subjective moment of freedom, considered as pure creative activity. There corresponds to it the notion of aspiration, which Bergson posits as a demand produced by moral intuition and by attraction, that is, as a "creative emotion" (Bergson, op. cit., p. 39).

The causality of reason upon the will can only be posited on the plane of the final cause. The will, in fact, cannot be moved except in function of its essential tendency toward the end, that is, in function of the love of the good (v.). Obligation, therefore, is not a new form of causality, but is the good itself, which manifests itself not as simply fitting, but in its absoluteness of right, whether this belongs to it intrinsically (natural law) or extrinsically (positive law). The absoluteness, which is revealed through reason, finds its correspondence in the tendency toward absoluteness connatural to the will: God, who dictates his will in the moral imperative, is already present in the will's inclination toward him. It is in the light of the categoricity of the natural law that the human person understands the whole metaphysical value of his nature and of his finalistic tendencies: in the will a profound emotion is awakened, which is desire for the absolute, fear of losing it, commitment to attain it. Certainly duty cannot be reduced to the hypothetical imperative, as though the good imposed itself as a utility to be attained in function of happiness. Nor can one speak of a categorical imperative in the sense of excluding the love of the end. The honestum imposes itself because it is itself in the light of the absoluteness of the end: the will must will it because it is good, and it is not good because the will must will it. The law, that is, does not operate directly on the will, but on the good, inasmuch as it posits it in an order of right, giving it the very character of divine absoluteness. And this is expressed in the first moral principle, the source of every moral duty, "Bonum est faciendum et malum vitandum" (Sum. Theol., 1ᵃ-2ᵃᵉ, q. 94, a. 2).

Through moral duty a dialogue begins between the human person and God and among the various human persons. The human person feels his dignity and his responsibility: he conceives his nature as a "ought to be," his life as a divine vocation toward the possession of God. He knows himself to be a participant in and cooperator with the divine will itself, because without his free assent, without his ceaseless effort of choice and overcoming, the eternal law of God cannot be realized in him and in society (Sum. Theol., 1ᵃ-2ᵃᵉ, q. 19, aa. 1-2). He feels that God with his Providence sustains the frailty of his nature; he knows that his every good act becomes worthy of merit and that God will respond with just sanction to faithful correspondence to duty. With other human persons, he brings into act a reciprocity of duties and rights, according to a positive order, which expresses in the changing circumstances of time and space the absoluteness of the natural law. On the hypothesis of a supernatural order, the same natural law will impose on the human person the duty of accepting the revealed law: the dialogue between man and God will then become more perfect through the operative power of the theological virtues, and human society will be sublimated into the Communion of saints (v.). Contemporary Christian personalism (v.) develops these principles, applying them above all to social life and to pedagogy.

Tullio Piacentini

II. LAW

1. Concept

In legal language, "obligation" alludes to a duty deriving from law. Although the Italian legislator has not defined obligation, from the positive legal order it emerges that it is a legal relationship between two subjects, on the basis of which one, the debtor, is bound to perform a specific prestation toward another, the creditor, to whom the legal order grants the means necessary to obtain it or to secure an economic equivalent.

The etymological meaning of the word obligation, however, is not that of legal duty, but, as is evident from the Roman expression obligatio, of a bond, of a tie; this etymology can be explained historically. If one considers the evolution of obligatio, one notes that, still in a historical phase of Roman law, non-performance exposed the debtor to a liability not only of a patrimonial nature, but also personal; in the process, in fact, the creditor's action - which is called actio in personam - is directed against the physical person of the debtor and leads in the executory process to his imprisonment. It is, consequently, conceivable that in the most ancient period of Roman law the debtor or his guarantor - the sponsor - were burdened, more than by a legal duty, by a bond. The lack of sources prevents knowing precisely what the nature of this bond was; some authors think it was a material bond, others an ideal one. Although the bond had, in the final analysis, the function of guaranteeing the relationship between creditor and debtor with regard to the prestation, it is not to that relationship that the terminology obligatio must refer: this expresses the personal situation of subjection which, with regard to the creditor, affects the debtor and exceptionally limits his sphere of freedom. If it is legitimate to advance such conjectures regarding the most ancient Roman law, it is nevertheless indubitable that in the obligatio of classical law the subjection of the person of the debtor to the person of the creditor is nothing but a distant memory that echoes only in the terminology. Although this has been denied, from the definitions contained in the Institutes of Justinian (3, 13 pr.): Obligatio est vinculum iuris quo necessitate adstringimur alicuius soluendae rei secundum nostrae civitatis iuris, and in the Digest (44, 7, 3 pr.): Obligationum substantia non in eo consistit, ut aliquod corpus nostrum aut servitatem nostram faciat, sed ut alium nobis obstringet ad dandum aliquid vel faciendum vel praestandum, it appears that the vinculum iuris by which the debtor is bound to dandum aliquid vel faciendum vel praestandum is nothing other than the obligation to perform the prestation. This obligation then finds formal expression in the assertion that, in the process, the creditor makes of his claim having as its object a dare facere praestare oportere, in which is expressed the necessitas incumbent upon the debtor with regard to the dare, the facere and the praestare, that is, to the prestation in its various configurations.

2. The constituent elements of the obligation. The subjects; the «vinculum iuris». - The elements of the obligation are: the legal bond, the subjects and the object. The legal bond is the relationship that exists between the creditor, holder of a subjective right with regard to the prestation, and the debtor, who is subject to a corresponding obligation. The obligation is, consequently, an intersubjective relation, of which the active and passive subjects are respectively the creditor and the debtor.

It has been maintained that, even in modern law, the vinculum iuris in which the obligation consists has the effect of causing a true and proper subjection of the person of the debtor to the person of the creditor. Whatever the nature of the vinculum of the primitive Roman obligatio may have been, it is indubitable that at present it manifests itself in a legal obligation, to which a subjective right with regard to the prestation corresponds. This means that where the debtor does not perform the prestation, he will have to submit to judicial action and possibly to condemnation and forced execution upon his patrimony: but the content of the obligation that is the foundation of the obligation is incoercible, inasmuch as its performance depends on the will of the debtor, and the freedom of the latter, from the mere arising of the obligatory relationship, does not undergo any limitation. It has also been maintained that the obligation is a relationship between the creditor and the patrimony of the debtor, or a relationship between the patrimonies of the debtor and of the creditor: in reality, the patrimony of the debtor is the point of reference of the creditor's action, that is, it is that entity upon which the creditor will satisfy himself in case of non-performance, but, in its substantive profile, the obligation is nothing other than an intersubjective relation, which prescinds from the existence of the patrimony of the subjects who contract it.

In the obligatory relationship, the determination of the subjects who are parties to it is required, and normally they are determined from its very arising: it may happen, however, that the subjects are determined at a later moment, on the basis of facts or relationships provided for at the moment when the obligation came into being. Into this category fall: a) ambulatory obligations, in which the debtor becomes whoever from time to time finds himself in a specific relationship with a thing (obligationes propter rem, servitus oneris ferendi, etc.); b) bearer instruments, in which only the person of the debtor is determined, while that of the creditor is determined by possession of the document; c) offers to the public, which are addressed to an indeterminate number of subjects, among whom, by means of acceptance, the subject who becomes holder of the claim is determined.

The obligatory relationship may have as its parties either two subjects or a plurality of subjects. The second hypothesis occurs when either against a single creditor there are several debtors, or, vice versa, against a single debtor there are several creditors; in that case: a) the obligation may be split into as many obligations as there are creditors or debtors (partial or simply joint obligations); b) the obligation is not split, being indivisible; c) the obligation is not split, since the will of the parties or the law considers it in its unity (solidary obligations).

3. Natural obligations

Besides obligations whose performance is protected by law by means of an action, there are others which, although having a patrimonial content and being structurally identical to the former, are devoid of an action. Consequently, with regard to them, the concept of vinculum iuris falls away, and the obligation that is their foundation presents itself as merely social, ethical, customary, without rising to the level of a legal obligation. Such obligations are called natural and are to be distinguished from the obligation in the technical sense and identified with the duties of conscience and with those imposed by social conventions that have a patrimonial content.

In classical Roman law the typical natural obligation consisted of the debts and credits of slaves, who, lacking legal capacity, could not be subjects of a relationship such as the obligatio. In ancient times, probably, the position of filiifamilias was also analogous; to them, however, there was gradually recognized the capacity to bind themselves civilly. In post-classical and Justinianic Roman law, the category of obligationes naturales was broadened, and a series of relationships were brought under it, in respect of which the obligatio does not arise, but, as happened with the debts and credits of slaves, the recovery of what had been spontaneously paid is excluded (soluti retentio). This, also in Italian positive law, is the typical effect of the natural obligation: it does not give rise to a compulsion to perform, but, where the naturaliter obligatus spontaneously performs, the legal order sanctions that performance through the impossibility of recovering what has been paid. The soluti retentio is not, however, an effect that the legal order attaches directly to the natural obligation, but one that must be referred to the spontaneous performance, an act subsequent to and autonomous from the obligation itself, which, considered in itself, receives sanction only from the social order. One doctrinal current, however, considers the natural obligation relevant also on the legal plane; it is asserted, in particular, that the law, through the soluti retentio, shows that it takes into consideration relationships contemplated by other norms (social, ethical, customary), even though it grants them only a weaker protection than that normally attached to the obligatory relationship. The concept of natural obligation is delimited both by that of civil obligation and by that of donation, even though the spontaneous performance has the characteristics of an act of liberality: for a natural obligation to exist, in fact, the spontaneous performance must not stem from a purely charitable or remunerative purpose. Art. 2034 of the Civil Code refers, first of all, to moral and social duties; as examples of natural obligations one may recall the obligation extinguished by an unjust judgment of acquittal or for lack of evidence or for false oath, the obligation of the residual debt after a composition with creditors, the obligation to provide a dowry, the confirmation and voluntary execution of a donation or of void testamentary dispositions, the obligation of the natural father to provide maintenance to unrecognized natural children, outside the cases provided for by art. 279 of the Civil Code, etc.

4. The object of the obligation: the prestation

The creditor's right is directed to the satisfaction of an interest concerning a good: that good is the prestation, which represents the object of the obligation. The prestation is composed of a personal element and a patrimonial element. The first consists in the conduct of the debtor, the second in the result of that conduct: thus, in obligations to give, the prestation consists in the conduct of the debtor, which has the result of procuring for the creditor a thing or a right; in obligations to do, in the conduct of the debtor which has the effect of procuring for the creditor a utility deriving from human labor. Some authors, starting from the premise that the obligation is a bond of the person, see the prestation in the mere conduct or act of the debtor. Others see the object of the obligation in the result of the conduct, that is, in the good owed, which is represented by the thing in obligations to give, and by the utility produced by human labor in those to do. The prestation, consequently, is not conceived as the object of the obligation, but as a simple instrument or means suitable for procuring the good.

The requirements of the prestation are: a) patrimoniality. The prestation must have economic content, that is, be susceptible of patrimonial evaluation. Otherwise, in the event of non-performance, the creditor would lack the possibility of satisfying, through legal proceedings, his claim against the debtor's patrimony: the non-performance of the obligation, consequently, would be practically devoid of legal effects and would therefore cease to be a legal obligation. From the prestation, however, one must distinguish the creditor's interest in the prestation, which is also a necessary requirement: patrimoniality is a characteristic of the prestation considered in itself, whereas the creditor's interest in the prestation, provided it is serious and socially appreciable, may also be of a moral, ethical, or affectionate nature (cf. art. 1174 of the Civil Code: "The prestation that forms the object of the obligation must be susceptible of economic evaluation and must correspond to an interest, even a non-patrimonial one, of the creditor"). b) Possibility. The obligation cannot have as its object an impossible prestation. Two types of impossibility are distinguished: absolute or objective, and relative. There is absolute impossibility when the prestation cannot be rendered not only by the debtor, but by anyone, for natural causes (e.g., the prestation has perished or relates to things that are not in rerum natura), or for legal causes (e.g., the prestation relates to things extra commercium). There is relative impossibility when the prestation cannot be rendered for reasons concerning only the debtor, whereas it could be rendered by other persons. Only in the first case does the obligation not arise, whereas in the second it is converted into the prestation of the id quod interest, that is, of an indemnity representing the creditor's interest in obtaining the original prestation, or the sacrifice borne in procuring it from others. Even in the case of absolute impossibility, when the creditor has been unaware of the impossibility without fault on his part, the obligation arises, being transformed into the duty to pay compensation for the damage. The amount of the compensation, in this case, does not reflect the creditor's overall interest in the original prestation, but is limited only to the so-called negative interest, that is, to the damages and expenses incurred as a consequence of the reliance placed on the debtor's promise. c) Lawfulness. The prestation must be lawful, that is, it must not be contrary to the laws, to public order, to morality, or to good custom. d) Determinacy. The prestation must, finally, be determined or, at least, determinable on the basis of criteria or elements fixed in advance. Otherwise the prestation itself would fade away, since the debtor could limit it to an entity of no value.

5. Joint and several obligations

These exist when, the prestation being single, there is a plurality of subjects and the relationship is constituted in such a way that, where there are several creditors (active solidarity), each of them has the right to collect the whole, as if he were the sole creditor, or, where there are several debtors (passive solidarity), each of them is bound to render the whole as if he were the sole debtor. In the case of active solidarity, performance rendered to one of the creditors releases the debtor also toward the other creditors; in the case of passive solidarity, performance rendered by one of the debtors releases the others as well. In the internal relationships the joint and several obligation is divided among the various creditors or the various debtors, unless it was contracted in the exclusive interest of one of them: the debtor who has paid may then recover from his co-debtors the share owed by each of them. Solidarity, which may have its basis in the will of the parties or in the law and is, in general, presumed where there is a plurality of active or passive subjects, is inspired by a strengthening and a greater protection of the right of credit.

6. Divisible and indivisible obligations

Obligations are divisible or indivisible according to whether or not the performance that is their object is capable of being divided. Performances of giving are divisible, whether they concern a thing or a right capable of being divided into ideal shares (for example, ownership, usufruct, emphyteusis). Performances of giving are, on the contrary, indivisible when they concern a right not capable of division (for example, servitude, pledge, mortgage). A performance of doing is indivisible when it consists of an act appreciated in its unity, or leads to a result that is considered as a whole: it is, on the other hand, divisible when it consists of a continuing activity or leads to results of work assessed by quantity. A performance of not doing is indivisible, since by its nature it does not involve even in part the carrying out of the prohibited act. The indivisibility of an obligation, besides arising from objective characteristics of the performance, may also exist for performances that would not in themselves entail it, when it has been agreed upon by the parties, or imposed by law. The effect of a divisible obligation is that, where there are several debtors or several creditors, each debtor is bound to render only his share of the debt and each creditor may claim only his share of the credit. For indivisible obligations the principle holds that each debtor is bound for the whole, subject to recourse against the co-debtors for reimbursement of the shares owed by each, and that each creditor may demand the entire performance of the obligation, with the obligation, however, to make good to the other creditors their shares.

7. Alternative, facultative and generic obligations

Alternative obligations are those in which two or more performances are included in the bond: only one of them is owed and the obligation is extinguished when that one is rendered. The salient moment of such obligations is constituted by the so-called concentration, on the basis of which, at the time of performance or even earlier, according to established criteria, the performance owed is determined. Facultative obligations are those that provide for a single performance, but in which the debtor may free himself from the bond by rendering a different performance.

Generic obligations are those in which the performance is not individualized ab initio, but indicated only by the genus to which it belongs, so that a determinate quantity of the indicated genus must be rendered. The most frequent type of generic obligation is that of the obligation to give a certain determinate or determinable quantity of things belonging to a genus.

8. The sources of obligation

Sources of obligation are those juridical facts that have as their consequence the arising of the obligatory bond. In Roman law they were, for the earliest period, the contract and the delict (Gaius, Institutes, 3, 88). Subsequently - it is debated whether through the work of Gaius himself or of a post-classical author - it was considered that there existed facts capable of producing obligations not reducible either to contract or to delict; thus arose the category of the variae causarum figurae which appears in a passage of the Digest (44, 7, 1) attributed to Gaius. In the Institutes of Justinian (3, 13, 2), then, while the contract and the delict remained as sources of obligation, the variae causarum figurae were eliminated and two new sources took their place: quasi-contract and quasi-delict.

The Italian Civil Code of 1865, in art. 1097, enumerated as sources of obligation "the law, the contract, the quasi-contract, the delict and the quasi-delict". That is, the sources of obligation were distinguished, following the example of the French code, according to whether they derived from the law, or from a lawful act of man, as in the contract and the quasi-contract, or an unlawful one, as in the delict and the quasi-delict. This system reproduced, substantially, that of the Justinian Institutes, adding the law, that is, the juridical order, which, however, in reality is the primary source of every obligation and in general of any juridical fact, and stands on a different plane with respect to the contract, the delict, the quasi-contract and the quasi-delict, which presuppose it.

In the code currently in force, however, there has been a return to the tripartition that occurs in D. 44, 7, 1. Art. 1173, in fact, states: "obligations derive from the contract, from an unlawful act, or from any other act or fact suitable for producing them in accordance with the juridical order". The modification made by the present legislator has been undoubtedly fortunate, since, having eliminated the law as a source of obligation, the intention is to emphasize that, alongside the contract and the delict, there exist various types of case (variae causarum figurae), not reducible to those and not reducible to a common denominator, that generate obligations. These types of case, being entirely abnormal, are not capable of being fitted into rigid categories such as the quasi-contract and the quasi-delict.

9. Performance

It is the end toward which the obligation tends and consists in bringing the performance to the creditor: the juridical transaction by which the performance reaches the creditor is called payment or solutio.

The recipient of the payment is the creditor, unless he is incapable of disposing or is a person subject to sequestration. Payment must be made to a different person where the creditor has authorized others to receive it, or the law or the judicial authority has otherwise provided.

The performance must be rendered by the debtor: it may, however, be rendered by a third party where the creditor has not relied on the personal qualities of the debtor, as, for example, happens in certain obligations of doing. The third party, who has validly made the payment, is subrogated into the juridical position of the satisfied creditor and there belong to him against the debtor the same rights that belonged to the creditor.

The time and place at which the performance must be rendered vary according to the nature of the obligation, the will of the parties, and the provisions that, in the absence of the latter, the law lays down.

Guarantees of the obligation are, besides the means that the juridical order generally provides, the conventional penalty and the earnest, which are directed at settling by agreement and in advance the amount of the damages that would derive to the creditor from non-performance. The debtor, alongside the obligation to render the performance, undertakes to pay the creditor a sum greater than the value of the performance should he become non-performing: in this way the obligation is strengthened, since the danger of having to pay the penalty exerts a psychological pressure on the debtor's will with regard to performance.

10. Non-performance

It occurs when the performance is not rendered in whole or in part. Non-performance, besides arising from the impossibility of the performance, may derive from the will of the debtor. This circumstance entails the imputability of the debtor, from which follows liability for compensation of the damage, which assumes different intensity according to whether the debtor's conscious will not to perform the obligation is presupposed (dolus), or only a lack of diligence (fault). The debtor incurs liability for compensation of the damage also when a culpable delay in rendering the performance is imputable to him (mora solvendi); and likewise the creditor incurs liability where a culpable delay in receiving it is imputable to him (mora accipiendi).

11. Extinction of the obligation

The obligation is extinguished, first of all, when it attains its economic purpose, that is, when the performance reaches the creditor. The most common and normal mode of extinction of the obligation is, therefore, payment. There are, however, other causes capable of extinguishing the obligation, among which the principal ones are: a) novation, which occurs when a new obligation takes the place of a previous one, which is extinguished. There is subjective novation when the new obligation differs from the previous one by the change of the person of the debtor or of the creditor; there is objective novation when in the new obligation the subjects remain unchanged while the performance changes. A prerequisite of novation is the consent of the creditor, for whom the new obligation counts as performance of the previous one. Necessary requirements for novation are: a previous obligation which the new one replaces; a new obligation that extinguishes the old one; the intention to novate (animus novandi). b) Set-off. When a subject is at the same time debtor and creditor of another, if the items of debit and credit are of the same amount they cancel each other out entirely; if they are not of the same amount they cancel each other out partially up to the amount of the lesser sum. This phenomenon is called set-off and effects a total or partial extinction of the obligation. Set-off may derive from the law, from the will of the parties, or be pronounced by the judge. For it to take place it is required that the performances be homogeneous, that is, that they have as their object fungible things, so that they may be substituted; that the credits be liquid, that is, that their existence be uncontested and their amount determined; that the said credits be due, that is, that the creditor may claim them in court without any limitation; that the obligations be reciprocal, that is, that one subject be at one and the same time creditor and debtor with regard to another. c) Release. It is an act by which the creditor disposes of his own right, freeing the debtor from the obligatory bond without having received the performance. d) Merger. A prerequisite for the existence of the obligatory relationship is the existence of two subjects, debtor and creditor. When the position of debtor and of creditor comes to rest in the same person, the obligation is extinguished.

Franco Pastori